Summary: The Council took too long to issue a final Education Health and Care plan. It did not ensure that Miss B’s son could access the educational provision set out in the plan. The Council did not properly consider her request that the funding be made available to him to better deliver the plan while he could not attend school. The Council took too long to deal with Miss B’s complaint and did not properly address the issues she raised. The Council’s shortcomings meant that Miss B’s son missed out on education and caused her distress, frustration and uncertainty. The Council offered a means to remedy the impact on the family and it has agreed to my additional recommendations.

The complaint

1. Miss B complained about how the Council dealt with her son’s special educational needs. In particular, Miss B says the Council:
• failed to ensure that the provision set out in the Education Health and Care (EHC) plan has been provided since March 2021 when the child stopped being able to attend school due to ill health;
• took too long to confirm that it intended to cease the EHC plan; and
• failed to deal with her complaint about this properly.
2. Miss B says that as a result of these failings her son lost out on essential educational provision. The family were caused distress and it had a huge impact on their ability to work and on their health.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Miss B complains about events dating back to 2021 and did not complain to us until July 2023. That is more than 12 months. However, Miss B started the complaints process in July 2022 and was trying to resolve matters with the Council throughout that time. For these reasons, it was not reasonable to expect Miss B to complain to us sooner.
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
10. The Council issued an EHC plan in 2022. Miss B had the right to the Tribunal about this if she did not agree with the contents. It was clear that the plan did not reflect her son’s situation and she had told the Council the school could not meet his needs. It is reasonable to have expected Miss B to appeal the plan. The provision that K received after that is a consequence of the plan and an appeal could have remedied the issue. For this reason, I am not investigating the Council’s actions to provide an education following May 2022.

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How I considered this complaint

11. I considered the information provided by Miss B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I considered the comments received before issuing this final decision.

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What I found

The law and guidance

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
14. The Council must review the EHC plan annually, but it can call an early review if it is necessary to change the plan sooner, for example, where the school placement has broken down.
15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
16. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
18. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
20. Families have a right to request a personal budget – the calculated cost of delivering the EHC plan provision. This allows them to have a say in how the services are provided and to arrange their own support via a direct payment. In November 2023, the Ombudsman issued a focus report ‘Parent Power: learning from complaints about personal budgets’. This gave guidance to local authorities on common problems with personal budgets and direct payments. His advice to local authorities included that it should train staff to recognise requests for direct payments.

What happened

21. Miss B’s son, K has complex needs. He has a social care package and also an EHC plan that sets out his special educational needs. During the COVID-19 restrictions, K isolated at home. K had been going to school full time but when he tried to return to school, he could only attend part time.
22. K has had an EHC plan for many years. The Council reviewed the EHC plan in March 2021. The review says that the disruptions meant K’s anxiety had increased and it was difficult for him to get into school. The school had given him a part-time timetable that avoided the busier times of day, and it regularly reviewed whether this was working.
23. However, K was unable to return to school even on his part-time timetable due to his heightened anxiety. From May to December 2021, the school facilitated regular check-ins online. Miss B delivered his educational activities. This was a great demand on her as she had to fit her part time work around this. Miss B tells me that it caused her stress and took a toll on her physical health and there was a period of time she could not work due to ill health.
24. During this time the Council held regular multiagency meetings which included Miss B and K’s father, the school, K’s social worker, his occupational therapist and the Council’s SEN department. This kept K’s progress with returning to school under review and looked at how various professionals and his parents could support him. The intention remained that K would return to school where he had a place with all the support he needed to make the provision under the EHC plan. Each meeting noted that the Council had not issued the draft or the final plan following the review in March 2021.
25. In July 2021, the multiagency meeting looked at how K’s funding (currently paid to maintain his place at the school) could be used more creatively to make his educational provision, given that he could not access it all from home. The meeting notes say the Council agreed it would consider this.
26. Miss B asked for more support at home. She said her son should be able to access a suitable education while he was not in school, she wanted to fund a tutor, specialising in the provision set out in K’s EHC plan. K was not receiving the speech and language therapy set out in the plan because this was only available in school, and Miss B said K needed a fresh assessment of his needs here. Lastly, K’s educational attainment levels had not been assessed for some time because he had not been in school.
27. From January 2022, the Council increased K’s direct payments made under his social care package. This allowed a personal assistant to work with K with learning activities instead of him going to school. He did, however, remain on the school roll. The Council issued the new EHC plan in May 2022. This named the school as K’s place of education and set out the provision he could receive if he was able to attend school. It did not set out his personal budget or how the direct payments were contributing towards delivering the EHC plan. Miss B had the right to appeal to the tribunal about the EHC plan.
28. The Council reviewed the plan in June 2022. At the review, Miss B said that the direct payments were working well in the absence of the educational provision that her son was supposed to receive under his EHC plan. Miss B said the school could not meet K’s needs and he would need a more suitable placement, access to therapy, an updated speech and language assessment and support with his feeding and sensory processing differences. Miss B asked the Council for a personal budget. She said that the lack of progress in providing more meaningful educational support at home meant that any prospect of K returning to school was lost. The school had not assessed K’s education levels and could not comment on whether he had reached the outcomes of the plan because he had not been into school.
29. In January 2023 the Council decided that it would cease the EHC plan. The Council did not send formal notification of the decision to end the plan until November 2023.
30. The Council has improved its service under an accelerated improvement plan and K is now assigned to a new team.

Was there fault by the Council causing injustice to K and his family?

31. In response to my investigation, the Council has accepted that it was at fault and it has offered to remedy the injustice caused to K and his family.
32. The Council accepts that it took too long to issue K’s EHC plan following the review in March 2021. According to the law, the Council should have issued the notice that it intended to amend the plan within four weeks of the review and a final plan within 20 weeks. But it took almost a year to issue the notice and 14 months to issue the final plan. This was fault by the Council. It caused Miss B distress and meant that she could not appeal to the tribunal despite that K could not access all of his educational provision. The Council has offered £750 in recognition of the distress this caused to Miss B. This is an appropriate means to remedy the injustice.
33. By May 2021, it was clear that K could not attend school. The Council should have made sure that the provision set out in his EHC plan was accessible by him. If this was not possible, then it could have called an emergency review of the plan, and sought to amend the plan to reflect K’s needs and provision.
34. The Council accepts that the educational provision between May and December 2021, was not a suitable education and was not in accordance with K’s EHC plan. This means that K was without a suitable education for these two terms.
35. From July 2021, Miss B asked for K’s funding to be used in a different way. For example, Miss B found a tutor that could deliver some of the EHC plan provision at home. She was clear in her request for the Council to make K’s provision and funding available to him. I can see that this would have involved some careful consideration given there was an intention for K to return to school, but the Council did not properly consider whether Miss B was requesting a personal budget from which direct payments could be made or services commissioned.
36. My understanding is that K’s social care direct payments increased from January 2022 and this allowed a personal assistant to support K with educational tasks and in joining the classroom online for brief sessions so that he could see the teacher and classroom (He could not join the actual lessons). However, there continued to be fault by the Council in how it dealt with K’s educational provision. The personal assistant could not implement the EHC plan which had specific provision by trained tutors, as well as speech therapy. It was clear in the multi-agency meetings and by the next EHC plan review, that K had not been receiving his full provision. The speech therapist could only visit K at school and although he was supported by the personal assistant at home, Miss B consistently raised that he needed a reassessment. The review also made clear that the school could not assess K’s attainment and whether he had met the outcomes of the plan.
37. K did not receive his full EHC plan provision from January to May 2022. It is possible that K could not access his full EHC provision from home, but again this should have been reflected in the review process with an amended plan. Miss B had no opportunity to appeal until the Council issued the final plan in May 2022. This was a further term of reduced provision, although I note that it was partially implemented via the personal assistant.
38. I also note that the provision of the EHC plan via direct payments or the personal budget is not included in part J of the EHC plan issued in May 2022. This further suggests that although the Council was working to improve the situation, it had not made a formal decision to make his personal budget available via direct payments.
39. The Council took too long to issue its decision to cease the EHC plan after this was decided at a meeting in January 2023.
40. Miss B complained to the Council. It has a two stage complaints process. However, the Council has acknowledged it took too long to complete both stages and it did not fully address the complaints she had raised. The Council has offered to pay Miss B £500 in recognition of the frustration this caused her. This is an appropriate means to remedy the injustice.
41. The Council’s failures meant that K could not access his educational provision from May 2021 to December 2021. There was an improvement when the Council funded a personal assistant but this still did not allow K to access the provision set out in the plan. This also caused distress to the family. The Council’s failure to properly consider making a personal budget available; the significant delay in issuing the final plan following the March review; and the shortcomings in the complaint handling, caused Miss B uncertainty and frustration. The Council’s shortcomings also delayed Miss B’s right to appeal when it was clear the plan was not working.

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Agreed action

42. The Council is making improvements to its services. It has offered to remedy the injustice by payments to Miss B. The Council has agreed to my recommendations to increase the remedy in line with the Ombudsman’s guidance.
43. Within one month of the date of this decision, the Council will:
• Apologise to Miss B for the faults identified and the impact on her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Miss B £750 as offered in recognition of the impact of the Council’s delay in issuing the final EHC plan in 2022.
• Pay to Miss B £500 as offered in recognition of the impact on her of the Council’s poor complaint handling.
• Pay to Miss B £4,800 with regard to two terms that K missed educational provision from May to December 2021.
• Pay to Miss B an additional £900 for the one term K received a reduced provision from January to May 2022.
• Share this decision with relevant staff, along with the Ombudsman’s focus report ‘Parent Power: learning from complaints about personal budgets’ (November 2023). Remind staff to be alert to requests for personal budgets and direct payments so that the Council can properly consider these.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. There was fault causing injustice to K and Miss B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman